insuring compliance with all procedural requirements imposed by the President or pursuant to his direction.

Now, to go to one of the questions that was asked just now, what this says, in effect, is that when there is a question of executive privilege raised and there seems to be no other way to satisfy the request,, the head of the agency must be informed and he in turn must inform the assistant to the Secretary for Legislative Affairs, who will cause to be brought about compliance with the President's directive. The matter will be submitted to the Justice Department, to the Attorney General, for his consideration, after which he can consult with the Secretary of Defense and they will decide whether or not a recommendation will be made to the President. But this is spelling out the mechanics, not that the head of the agency himself refuses, but he is the one given the responsibility to go to the Assistant Secretary.

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Senator ERVIN. It does say no final refusal, and to me the word "final" means that is the end of the road. Apparently no one can get to the White House with a request for information.

Mr. BUZHARDT. No, sir; I think if that is your interpretation, that is certainly not the way it works in practice.

Senator ERVIN. Well, how can anything be final if it is not the end of that particular road?

Mr. BUZHARDT. They say no final refusal to furnish such information.

Senator ERVIN. Yes; but to make a final refusal, the secretarial component-that is, I take it, the Secretary of the Army, the Navy, or the Air Force or the Secretary of Defense-is empowered by this regulation to make a final refusal.

Mr. BUZHARDT. No, sir. If you will read further, I do not believe it does. It says they will have to notify the assistant to the Secretary for Legislative Affairs, who will then take the matter up in the procedure prescribed by the presidential memorandum.

Senator ERVIN. Well, the regulation says:

A final refusal to a committee of Congress may be made only with the concurrence of the Assistant to the Secretary of Defense (Legislative Affairs) who shall be responsible for insuring compliance with all procedural requirements imposed by the President or pursuant to his direction.

In other words, the man who does the interpreting is the Assistant Secretary of Defense for Legislative Affairs and he does not even have to talk to the President about it at all. That is what the word "final" means to me.

Mr. BUZHARDT. I can assure you, Mr. Chairman, that is not the way it works, and I think there is no misunderstanding in the Department of Defense on the way it works.

Senator ERVIN. I will just have to say that words are very elusive things, and the Department of Defense is like myself-they sometimes find it difficult to find words that express their real meaning. Mr. BUZHARDT. That is true, Mr. Chairman.

As you will note, the policy requires that when supplying particular information to the Congress in the form or manner or completeness requested poses an executive privilege type problem, an effort is made by departmental personnel to satisfy the congressional request through other mutually acceptable means. The Department of

Defense interprets the President's memorandum of March 24, 1969, as requiring the resort to the specified procedure for consideration of a claim of executive privilege only after alternative means of meeting the request have been exhausted. It is our understanding that the Justice Department concurs in this interpretation, as indicated by the testimony of Assistant Attorney General Rehnquist before the House Foreign Operations and Government Information Subcommittee on June 29 of this year. I believe he repeated that testimony here this morning.

Thus, on comparatively rare occasions the Department initially declines to furnish requested documents or other information to a Member of Congress or to a congressional committee. Frequently, the response is accompanied by a suggestion that the sense of the document can be supplied through other means such as summaries, briefings, or other documents. Apparently, departmental efforts to explore these alternative means of providing information have sometimes been misinterpreted as a final denial.

Sometimes difficulties have arisen because a congressional committee staff has levied very broad requests for data and records which they think might be useful in their investigative efforts. After supplying hundreds or even thousands of pages of documents on a particular subject, it has not been thought necessary to seek the President's intercession simply because a few pages of those documents could not be provided. In such situations one or more of the following reasons dictating nondisclosure have been provided the requester-ongoing investigations in which certain documents could not be provided without prejudicing subsequent administrative or judicial action-recommendations and advice from subordinates to superiors-matters affecting delicate foreign relations-highly sensitive military activities or information given to the DOD by private citizens on assurances of confidentiality.

Generally, the requester of such documents, when given the reasons, has accepted these explanations without becoming concerned about comparative constitutional prerogatives. This response is true whether the requester be a committee chairman, an individual Member of Congress, or a congressional employee.

The question of security classification of information and/or documents requested by the Congress is, we believe, entirely separate and distinguishable from that of executive privilege. As you are aware, classified information of interest to Congress is provided in substantial quantity on a classified basis in connection with the legislative requests, particularly authorization and appropriation requests, and in response to investigative activities by congressional committees. Undeniably, there are some activities of such extreme sensitivity that information with regard to such activities is given the most effective security protection available; that is, very limited distribution based on a need-to-know determination. Often the Department determines that detailed information about such highly sensitive defense activities is essential to certain committees or subcommittees of the Congress but not to others, based on the committee's jurisdiction, which the Congress itself has established. It is, of course, a matter within the discretion of the committee or subcommittee to which such in

formation is provided to determine the general availability of such information within the Congress or congressional body as a whole. The doctrine of executive privilege even in theoretical terms has been described as a gray area, particularly with reference to its scope. The practical application of the doctrine, even when administered under policies which seek the utmost cooperation between the branches, is certainly no less fraught with difficulties and uncertainties than the doctrine itself.

I do not believe that executive privilege is a matter which lends itself to statutory treatment. The history of the relationships between the executive and the legislative branches with respect to the application of executive privilege clearly indicates that the continued satisfactory resolution of mutual problems can only result from patient and understanding cooperation by officials of both branches. The Department of Defense will continue its efforts to foster such cooperation.

Senator ERVIN. Section 8 of article 1 of the Constitution provides in express terms that Congress shall have the power to "make rules for the government and regulation of the land and naval forces." And section 3 of article 2 provides in express terms that the President "shall take care that the laws be faithfully executed."

I would like to ask you if you do not think that Congress has a two-fold power under those provisions of the Constitution: First, to call upon the executive branch of the Government for any information which it is reasonably necessary or appropriate for Congress to have in order to make rules for the government of the land and naval forces; and also to call upon the executive branch of the Government for information to determine whether the President has faithfully executed the existing laws.

Mr. BUZHARDT. Yes; Mr. Chairman, obviously the Congress has, first, the legislative power and second, the right of oversight. However, like the executive privilege itself, I think it is not entirely absolute.

Senator ERVIN. Now, we have certain laws which provide for the use by the President of the Armed Forces in cases of insurrection against the States or civil disturbances of a certain magnitude. As I construe these laws, the President cannot use the Armed Forces to suppress insurrection against a State unless he is first asked by the State authorities to do so. The other law in effect is that the President can use our Armed Forces to prevent obstructions to the enforcement of the Constitution and laws in two and only two events: First, that the obstruction has risen to such magnitude that you can no longer administer justice through the courts; and second, that even in that case, the State must be unable or unwilling to enforce the law. Is that not about right?

Mr. BUZHARDT. Mr. Chairman, I would not personally agree or disagree necessarily with your interpretation. I am not sure that the precedents in all cases are consistent with your interpretation.

Senator ERVIN. Well, it would seem to me very plain that the President has no power to use the Armed Forces against civilians in any way except when those two events occur. There is nothing in those laws that says the President can use the Armed Forces to determine whether there is going to be an insurrection against a

State which would make it advisable for the Governor of the State or the legislature of the State to call on him for help, or to determine whether at some time in the future there is going to be such obstruction of the laws as to impede the administration of the laws in the courts. Yet the Subcommittee on Constitutional Rights has been attempting to find out whether the President has faithfully executed those particular laws. The subcommittee also is interested in finding out what new laws or new rules the Congress needs to make for the government to put an end to the use of the Armed Forces for such illegal purposes. Do you not concede that we are entitled to information in the possession of the Department of the Army about these matters?

Mr. BUZHARDT. Clearly you are entitled to information, Mr. Chairman. And I might add I think we have provided it in quite a large volume.

Senator ERVIN. Well, I would like to know whether this example involves the exercise of executive privilege. We have been told in effect by the Department of the Army when we sought information regarding Army surveillance of civilians that certain information we sought was not appropriate for our subcommittee to have. Now, is that invoking executive privilege or not?

Mr. BUZHARDT. No, Mr. Chairman, it is not. I think we get to the point here where, in almost every case, it was suggested that it was inappropriate to provide this and some alternative means were suggested-in which case there has been an attempt repeatedly and continuously to provide the committee with the necessary information through some means.

Senator ERVIN. The only alternative means that I can recall at the present moment is that we were permitted to see certain documents on condition that we could not use them.

Mr. BUZHARDT. I think in that case, Mr. Chairman, you are back to the question of classification. You were provided the information. Senator ERVIN. But that puts you in a worse fix. As has been Isaid, it is better to be ignorant than to "know what ain't so." If there is anything worse than being in that state, it is to have information which you cannot use not to be ignorant, but to know something and then be denied the right to use it.

Mr. BUZHARDT. Mr. Chairman, if that were the case, what you are saying, if that were absolute, that would be saying that in no case could we have a classification system. I do not think that could be borne out.'

Senator ERVIN. Now, the Subcommittee on Constitutional Rights also requested testimony from several generals. I will have to confess that you and Secretary Froehlke were very affable, very kind, and were willing to give us your version of certain information. But we wanted some information from people who had personal knowledge of the matter, and the opinion of the committee was that the people who had the most personal knowledge were the people who directed these operations. When we asked for the generals, we were told that it would be inappropriate for the generals to come. Now, is that invoking executive privilege?

Mr. BUZHARDT. No, Mr. Chairman, it was not and an alternate suggestion was made, as you will recall, that on any specific infor

mation that you wanted that was available, it would be provided through other witnesses.

Senator ERVIN. That alternative was based upon the assumption that we already had the information that we were seeking, we were seeking some information of those generals that we did not have. We were told that it would be inappropriate for them to testify but that we could receive such information as the Department saw fit to disclose through the witnesses designated by the Department.

You hear a lot about discrimination in these days. All of us are supposed to be against discrimination. What I do not understand is why the Department of the Army allowed Col. Louis Travathan. and Col. Lee Akins and Col. Jack Howard to go over and testify before the House Military Operations Subcommittee about these very matters and would not let the generals come and testify before my subcommittee. Can you shed any light on why that discrimination was practiced?

Mr. BUZHARDT. I am not familiar with that testimony or those individuals who testified.

Senator ERVIN. Well, the three colonels appeared before the House subcommittee and testified about the very things that the Senate Subcommittee on Constitutional Rights is investigating. But the Army will not let the generals come before us.

Would the Department of the Army let some colonels come down to testify? Perhaps the Army thinks the subcommittee ought not to associate with people as high ranking as generals, but would it let some colonels come down and testify as they did before the House subcommittee?

Mr. BUZHARDT. Mr. Chairman, I am sure if you asked for the same people to testify who previously testified, there is no reason why they could not testify before your committee also.

Senator ERVIN. They testified about the very things on which I am trying to get information before that House subcommittee. I would appreciate it if the colonels now would come and tell us about the military surveillance at Fort Hood, Tex.

Mr. BUZHARDT. Mr. Chairman, could you tell us when this testimony was? I am not really aware of the testimony.

Senator ERVIN. It was after all the event we are investigating, because they were asked the same questions. I can find it. I do not have it at hand.

Mr. BUZHARDT. I will check it, Mr. Chairman.

Senator ERVIN. I will have to correct myself I was mistaken. It was not before the House subcommittee, it was before their staff. Now, it is a funny thing to me, really-I think this is a rank case of discrimination. I do not like to have my subcommittee discriminated against, and I do not like the staff of my subcommittee discriminated against. I am totally incapable of comprehending why the Department of the Army would allow three colonels to go before the staff of the House Military Operations Subcommittee and testify to exactly the same things that the Subcommittee on Constitutional Rights wants the generals to testify to.

Is all this because the Department of the Army thinks it can trust the staff of the House subcommittee with information that it cannot

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